Flast v. Cohen (1968)

Case Summary

A federal court ruled that Flast and the other plaintiffs did
not have standing as taxpayers to challenge the use of federal funds
for religious schools. “Standing” is a legal requirement
under which a person can only file suit if he or she has a personal
stake in the outcome of the case. The plaintiffs then appealed to the
Supreme Court.

The Court's Decision

In an 8-1 decision, the Supreme Court held that the taxpayers
who brought suit to challenge the constitutionality of federal taxing
and spending programs do have the necessary legal standing to obtain
federal court review. Chief Justice Earl Warren wrote for the
majority, citing the earlier case of Frothingham
v. Mellon, 1923. In that case, Warren wrote,
“this Court ruled that a federal taxpayer is without standing to
challenge the constitutionality of a federal statute.… In this case,
we must decide whether the Frothingham barrier should be lowered when
a taxpayer attacks a federal statute on the ground that it violates
the Establishment and Free Exercise Clauses of the First
Amendment.” Chief Justice Warren noted that, in contrast to
Frothingham, the current case of Flast was about
a violation of the Establishment Clause of the First Amendment, which
prohibits any government action leading to the “establishment of
religion.” The Court concluded that the plaintiffs were
appropriate plaintiffs because they had sufficient personal interest
in preventing the use of their tax money for this purpose.

Justice John Harlan dissented. He argued that a taxpayer may
refuse to pay a tax or may sue for return of a tax wrongfully
collected, but may not sue to “challenge the constitutionality
of the uses for which Congress has authorized the expenditure of
public funds.”

More on the Case

The Supreme Court revisited the issues in
Flast in 1982, when the Court decided
Valley Forge College v. Americans
United for Separation of Church and State. Congress had
authorized the Secretary of Health, Education, and Welfare (HEW) to
dispose of federal “surplus property.” HEW transferred a
former military hospital to a church-related college.

Americans United and several individuals brought suit in federal
court, claiming that the transfer violated the Establishment Clause
and made unconstitutional use of their tax dollars. In a 5-4 decision,
the Supreme Court ruled that these plaintiffs did not have standing to
sue. Justice William Rehnquist noted that the plaintiffs objected to a
decision by HEW and not an action by Congress, and that they alleged
no concrete personal injury.

In his dissent, Justice William Brennan wrote that “It may
be that Congress can tax for almost any reason, or for no reason at
all. There is, so far as I have been able to discern, but one
constitutionally imposed limit on that authority. Congress cannot use
tax money to support a church, or to encourage religion.”
Justice Brennan argued that there is no practical way for a taxpayer
to challenge an unconstitutional expenditure when the tax is
collected. “Surely, then, a taxpayer must have standing at the
time that he learns of the Government's alleged Establishment Clause
violation to seek equitable relief in order to halt the continuing and
intolerable burden on his pocketbook, his conscience, and his
constitutional rights.”